BVA9509845
DOCKET NO. 93-17 810 ) DATE
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)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUES
1. Entitlement to an increased evaluation for residuals of a
jaw fracture and tongue laceration, currently rated at 10
percent.
2. Entitlement to an increased evaluation for residuals of a
left temporal bone fracture and cerebral concussion,
currently rated at 10 percent.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
C. M. Flatley, Counsel
REMAND
The veteran had active service from June 1982 to June 1986,
October 1986 to February 1987, and October 1987 to July 1989.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a May 1990 rating decision of the
Indianapolis, Indiana, Department of Veterans Affairs (VA)
regional office (RO).
Review of the record indicates that the veteran has submitted
a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991).
The VA therefore has a duty to assist the veteran in the
development of facts pertinent to his claim. 38 U.S.C.A.
§ 5107(a); Murphy v. Derwinski, 1 Vet.App. 78, 81-82 (1990).
A variety of symptomatology is noted with respect to the
veteran's service-connected disorders at issue, including
increased anxiety and headaches. With regard to the former,
the Board notes that although a psychiatric examination was
initially scheduled on appeal, it was not accomplished and
was not re-scheduled. It is noted that on neurologic
evaluation in May 1992, no organic mental changes were
identified, and follow-up examination at the mental health
clinic was recommended. Although a recent VA neurology
examination contains findings referable to the veteran's
psychiatric status and a diagnosis of organic anxiety
disorder, a special VA psychiatric examination has not been
accomplished and is requested by the veteran's
representative. Clarification with respect to the nature of
the veteran's residuals of a left temporal bone fracture and
cerebral concussion is indicated. In addition, the Board
notes that the veteran's residuals of a left temporal bone
fracture and cerebral concussion is rated in accordance with
38 C.F.R. § 4.132, Diagnostic Code 9304 (1994),
representative of organic mental disorders and specifically
referring to dementia associated with brain trauma. In light
of the recorded clinical data, it appears that consideration
of additional schedular criteria may be appropriate.
The veteran's most recent VA dental examination reflects that
some limitation of motion of the jaw is present. The veteran
alleges that he has been treated by an oral surgeon since his
in-service jaw fracture and has received regular dental
treatment at the VA Medical Center in Dayton, Ohio. Records
received from that facility in large part consist of
psychiatric outpatient treatment records; although the record
indicates that the veteran had been referred to the dental
surgery clinic on more than one occasion, pertinent data are
limited to one oral surgery consultation. Additional
treatment records reflecting regular treatment, to the extent
claimed by the veteran, were not received. The veteran's
representative also points out that impacted wisdom teeth and
pseudoarthrosis of the jaw were noted on the veteran's
February 1993 VA dental examination. It is essentially
alleged that such findings represent increased severity; a
relationship between the aforementioned findings and the
veteran's service-connected dental disorder is intimated, and
the representative alleges that the dental examination was
inadequate overall.
Lastly, the Board notes that the veteran's representative
raised the issue of service connection for headaches as
secondary to the veteran's in-service head trauma. As
indicated above, service-connection is in effect for
residuals of a temporal bone fracture and cerebral
concussion. It appears that, in essence, the issue of
service connection for headaches as secondary to a left
temporal bone fracture and cerebral concussion has been
raised. The United States Court of Veterans Appeals (Court)
has held that when an issue raised on appeal, but not
developed, may impact upon a fully developed issue, further
action with regard to the recently raised issue may be
appropriate. Harris v. Derwinski, 1 Vet.App. 180 (1991). As
the claim of service connection for headaches may impact on
the evaluation assigned the aforementioned service-connected
disability, further action in this regard is indicated.
Upon review of the record, the Board is of the opinion that
in order to fully assist the veteran in the development of
his case, and extend to the veteran every equitable
consideration, additional development is warranted. As such,
this case is REMANDED for the following:
1. After any necessary information and
authorization are obtained from the
veteran, duplicates of any post-service
treatment, VA or private, inpatient or
outpatient, associated with the
disabilities at issue and claimed on
appeal, and not previously of record,
should be obtained by the RO and
incorporated into the claims folder.
2. Special VA psychiatric and neurologic
examinations should be arranged to
determine the extent and severity of the
veteran's service-connected residuals of
a temporal bone fracture and cerebral
concussion. Any pertinent disabilities
present should be clearly identified and
the etiology thereof discussed; attention
is directed to the veteran's complaint of
headaches, claimed as secondary to his
service-connected left temporal bone
fracture and cerebral concussion, and the
recorded diagnoses of anxiety neurosis
and possible post-traumatic stress
disorder associated with the
aforementioned service-connected
disorder. The relationship between any
disabilities found and the veteran's
service-connected left temporal bone
fracture and cerebral concussion should
be discussed. The examinations should be
conducted in accordance with the
appropriate provisions of the VA's
Physician's Guide for Disability
Evaluation Examinations. Each
examination report should include a
detailed description of the veteran's
symptoms, clinical findings, and
associated functional impairment; all
indicated studies should be done. The
psychiatric examiner should provide an
assessment of the extent to which the
veteran's residuals of a left temporal
bone fracture and cerebral concussion
interferes with his initiative,
flexibility, efficiency and reliability
levels. Comprehensive reports, which
include the examiners' conclusions and
the foundation upon which they are based,
as well as the history of the veteran's
disability, should be provided and
associated with the veteran's claims
folder. The veteran's claims folder
should be made available to the examiner
for review prior to the examination.
3. A special VA dental examination
should be scheduled to determine the
extent and severity of the veteran's
residuals of a jaw fracture and tongue
laceration. The examination should be
conducted in accordance with the
pertinent provisions of the VA's
Physician's Guide for Disability
Evaluation Examinations. All indicated
studies should be conducted. The
examination report should include a full
description of the veteran's symptoms,
clinical findings, and associated
functional impairment. All findings
should be recorded in detail, including
the precise extent of any limitation of
jaw motion. The examiner should identify
the level of functional impairment
associated with the disorder identified.
A comprehensive report, which reflects
consideration of the aforementioned, as
well as the examiner's conclusions and
the foundation upon which they are based
and the history of the veteran's
disability, should be provided and
associated with the veteran's claims
folder. The veteran's claims folder
should be provided to the examiner for
review prior to the examination.
4. Inasmuch as the issue of service
connection for headaches as secondary to
the veteran's service-connected residuals
of a left temporal bone fracture and
cerebral concussion may impact upon the
issue of an increased evaluation for the
latter, the RO should take appropriate
adjudicative action, and provide the
appellant and representative notice of
the determination and the right to
appeal. If a timely notice of
disagreement is filed, the appellant and
representative should be furnished with a
statement of the case and given time to
respond thereto. The RO should then
review the veteran's claim. All
pertinent law, regulations, including
applicable schedular criteria, and Court
decisions, including Schafrath v.
Derwinski, 1 Vet.App. 589 (1991), should
be considered. If the veteran's claim
remains in a denied status, he and his
representative should be provided with a
supplemental statement of the case, which
includes any additional pertinent law and
regulations and a full discussion of
action taken on the veteran's claim,
consistent with the Court's instruction
in Gilbert v. Derwinski, 1 Vet.App. 49
(1990). The applicable response time
should be allowed.
The case should then be returned to the Board, if in order,
after compliance with customary appellate procedures. No
action is required of the veteran until he is so informed.
The Board intimates no opinion as to the ultimate decision
warranted in this case, pending completion of the requested
development.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This action has been taken in
accordance with the Veterans' Benefits Improvements Act of
1994, Pub. L. No. 133-446, § 303, 108 Stat. 4645, ___ (1994),
and is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1994).